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Friday, 18 July 2014

Redefining the terms of the Natural Law v Legal Positivism debate

The question of the connection between the law and morality is central to the history of legal philosophy. The debate, which has lasted from Ancient Greece to the present day, has been dominated by two broad categories of theory: natural law theory and legal positivism. Classical natural law theorists like Aristotle argued that laws were necessarily connected to man’s moral life, and had as their aim some higher moral – or divine – framework. Legal positivists, whose arguments dominated the 20th Century, argued that natural law theory confused the issue of what the law is and what it ought to be, and that laws could have authority irrespective of whether or not they were ‘good’.

Today, lawyers and Judges tend to think of their role as entirely morally neutral. The idea that the law should reflect, in some way, public morality seems a bit outdated. Why is this? Is it simply because natural law theory has been convincingly defeated? Perhaps the triumph of legal positivism reflects a collapse of moral consensus in wider society? Is there anything from natural law theory worth saving?

I think it would be helpful to redefine the terms of debate so we know what we are talking about. My heart always sinks when people approach this debate with a discussion about morality, which none of us can ever agree on and which no one ever attempts to define.

To this end, I shall attempt to define morality in terms general and neutral enough to acquire the necessary consensus required to move this debate forward.

If morality is for the purposes of instilling morality, then what is the purpose of politics? I would say that politics is the process of imposing our belief of what is moral on others. If we are in government, this is what we can do to others.

The problem with this debate is that nobody really properly defines what natural law is because they confuse it with a kind of universal morality which they cannot define. As I understand it, natural law was synonymous with God's law and in the West God's law came from a Christian God and can be found in the Bible.

As I see it, all the Abrahamic faiths promote the same kind of moral values and essentially promote what feminists would call the patriarchy through in effect forcing women into marriage because its alternative - prostitution, spinsterhood, a life of fornication, abstinence or lesbianism, was generally considered undesirable.

Social conservatism as I see it amounts to no more than the imposition of the rules of respecting marriage, which logically must meanthe prohibition of extramarital sex. If in this day and age we as a society do not respect marriage, it is only because the overwhelming majority of people have premarital sex, which is a species of extramarital sex. Indeed, we are encouraged and expected to do so by the government and the media in the form of literature, theatre, cinema, TV and even schools. The easiest way to make men respect marriage again would be to simply forbid all forms of extramarital sex and punish any transgressions. If this were socially and legally forbidden, no one will ever say again that marriage is "only just a piece of paper".

For the purposes of this discussion, it would be helpful to define natural law as anything that is in harmony with Biblical and Koranic principles, for we would then immediately know we what laws and what kind of morality we are discussing and rejecting and the reasons for so doing.

The Bible and the Koran are undeniably "sexist" and "homophobic" and clearly forbid extramarital sex.

It is also worth nothing that much of our PC Liberal laws go directly against the moral vaues of the Abrahamic faiths ie what constitutes natural law. If this is how natural law is defined and perceived, then this would help clarify the terms of debate, and tell us what we are really for or against as individuals, and actually get us somewhere.

In a nutshell, we should regard natural law as laws promoting social conservatism forbidding inter alia extramarital sex, suicide and usury and legal positivism as laws promoting the opposite.

"Today, lawyers and Judges tend to think of their role as entirely morally neutral."

"Ours is not to reason why. Ours is but to do and die" has always been the official position of the legal profession and the judiciary, who are in effect mere "soldiers" of laws following orders. Lawyers can only work within the parameters of what the law and the legal process allows, ie apply it rather than make it, and it is up to criminals and politicians in the legislature to push the boundaries and see how far they can go. Of course, it is not completely unknown for the criminal, lawyer and politician to reside in one person.

"The idea that the law should reflect, in some way, public morality seems a bit outdated. Why is this?"

Because there is no agreement about public morality in our society known for its diversity and people would rather not "go there" to avoid being accused of hate speech, presumably. In any case, the only "public morality" that is now allowed is PC Liberalism, and this means refraining from saying things offensive to the protected groups in the Equality Act 2010. http://en.wikipedia.org/wiki/Equality_Act_2010

I would suggest that it has not been convincingly defeated because war was never officially declared, let alone fought. PC Liberalism simply crept up on us unawares and we suddenly found it in our homes as a flood water, perhaps. In time it will recede, then we can begin clearing up the mess and think about how in future we can strengthen our flood defences.

"Perhaps the triumph of legal positivism reflects a collapse of moral consensus in wider society?"

The triumph of legal positivism is akin to a successful breaching of a society's defences when its leaders were asleep on the job, or who were perhaps like the Trojans ignoring Cassandra's warnings against bringing the Trojan Horse into through their city gates.

"Is there anything from natural law theory worth saving?"

Only if we think the moral values contained in the Abrahamic faiths serve a useful protective purpose. Clearly, those who value their right to have extramarital sex more than the need to respect marriage as an institution - ie social liberals - do not.

Is there any purpose to respecting marriage? Only if we think it useful to rear the next generation in in optimum conditions.

What is morality really? It is a set of rules designed to maintain and perpetuate the strength of a society beyond the lifetimes of its current members. Most childless people, and people who care nothing for their children or the next generation, and who do not believe in God, would not trouble their heads too much on this question, I imagine. "This will last my lifetime", they probably think.

These days it would not be socially acceptable to point out that people without children probably vote, vote think and behave in a more selfish and short-termist way than parents with legitimate children that they love or that female MPs voted in a conspicuously different way to lower the standards of sexual morality when it is obviously true. http://thevoiceofreason-ann.blogspot.co.uk/2014/02/if-you-hate-gay-marriage-blame-83-of.html These days, it seems to be socially acceptable for men to avoid offending women and to even say that they are afraid of offending women. Perhaps that makes sense if they have women in a position of authority over them and who could easily deprive them of their job, status and income. Legal positivists should be pleased about this, I imagine, while natural lawyers are in a state of traumataised horror, awaiting a malicious accusation of a historic sexual offence in a state of pitiable and emasculated helplessness.

"The fundamental defect of the female character is a lack of a sense of justice. This originates first and foremost in their want of rationality and capacity for reflexion but it is strengthened by the fact that, as the weaker sex, they are driven to rely not on force but on cunning: hence their instinctive subtlety and their ineradicable tendency to tell lies: for, as nature has equipped the lion with claws and teeth, the elephant with tusks, the wild boar with fangs, the bull with horns and the cuttlefish with ink, so it has equipped woman with the power of dissimulation as her means of attack and defence, and has transformed into this gift all the strength it has bestowed on man in the form of physical strength and the power of reasoning. Dissimulation is thus inborn in her and consequently to be found in the stupid woman almost as often as in the clever one. To make use of it at every opportunity is as natural to her as it is for an animal to employ its means of defence whenever it is attacked, and when she does so she feels that to some extent she is only exercising her rights. A completely truthful woman who does not practice dissimulation is perhaps an impossibility, which is why women see through the dissimulation of others so easily it is inadvisable to attempt it with them. – But this fundamental defect which I have said they possess, together with all that is associated with it, gives rise to falsity, unfaithfulness, treachery, ingratitude, etc. Women are guilty of perjury far more often than men. It is questionable whether they ought to be allowed to take an oath at all."-Arthur Schopenhauer, On Women

The Bhagavad Gita:

"Out of the corruption of women proceeds the corruption of races; out of the corruption of races, the loss of memory; out of the loss of memory, the loss of understanding, and out of this all evil."